Jones v. Fitzpatrick

• Citation: 24 S.E. 1030,47 S.C. 40
• Parties: JONES et al. v. FITZPATRICK
• Decision Date: 10 July 1896
• Court: South Carolina Supreme Court

24 S.E. 1030

47 S.C. 40

JONES et al. v. FITZPATRICK

Supreme Court of South Carolina

July 10, 1896

Appeal from common pleas circuit court of Lancaster county; Benet Judge.

Action by Ira B. Jones and T. Y. Williams, as partners, against John H. Fitzpatrick, as guardian of Mary A. Kibbler. Judgment for plaintiffs for a smaller amount than sued for, and they appeal. Affirmed.

The judge charged the jury on the trial as follows:

"This is a suit brought by Jones & Williams, plaintiffs, against John H. Fitzpatrick, as guardian of Mary A. Kibbler; the plaintiffs claiming that Fitzpatrick, as guardian, owes them a fee for professional services as lawyers,--a fee of $150,--for the foreclosure of the Massey mortgage. The parties both agree that the work was done,--that the mortgage was foreclosed. There was some litigation in connection with it in the court, a trial had, a verdict or decree had, and a sale was made, and the money realized, as you have heard. The contest is as to whether a fee was to be paid for that work or not, the plaintiffs claiming that they are entitled to $150 as a reasonable fee for that work in comparison with work of the same kind, that that was a very reasonable fee, that they have been paid nothing for it, and that they are justly entitled to that amount for their services. The defendant, Fitzpatrick, admitting the services, alleges that Jones & Williams foreclosed that mortgage, and did all the work in connection with that foreclosure suit, under a general contract made with him in 1887 by Mr. Jones, one of the firm of Jones & Williams afterwards, but at that time by himself, by which he was to attend to all the business growing out of the investing of the money of Fitzpatrick's ward, and any litigation that might arise out of those investments, such as foreclosure of the mortgages. The defendant sets up that general contract, and says that under that contract it was agreed that nothing was to be charged by Mr. Jones,--that Mr. Fitzpatrick was not to pay any court costs. The money was to net him ten per cent. exclusive of court costs. He was not to pay any court costs at all,--no expenses of litigation. Now, that is the contract set up by Mr Fitzpatrick, and as to that, of course, he assumes the burden of proof. He is bound to show you, by a preponderance of the testimony, that that contract was made. You alone can settle the matter. Mr. Jones denies that any such contract ever existed. Mr. Fitzpatrick asserts as positively that it did exist. In settling that I don't think it necessary that a jury should pronounce one of those two men as testifying falsely and the other truthfully. The jury is not called upon to decide cases between false witnesses and truthful witnesses so much as between people who testify to their best recollection, and jurors know that the memory of man is not always trustworthy, and that the purest, most truthful men may testify under a mistake; and a jury that hears a case such as this has to settle which of two men, each one testifying to the best of his knowledge and belief, has the best recollection of the circumstances he testifies to. To repeat: It is not necessary to consider one or the other witnesses in a case like this as testifying to lies. Whatever your verdict may be, on whichever side you may find, it would not mean, necessarily, that the other side failed because he had testified falsely. The plaintiffs the firm of Jones & Williams, seek the value of the services for work done, alleging that there was no contract. Mr. Fitzpatrick says there was a contract. Now, a contract is an agreement between two or more persons, either in writing or by word of mouth, equally binding upon both parties, the contracting parties; but there can be no contract unless there has been a mutual understanding between the parties. Their minds must meet. That is to say, no one person can establish a contract, because he understood so and so to be the case, if the other did not. There could be no contract unless both understood, at the time, that such were the terms of the agreement; and the one who alleges the contract must prove it by the preponderance of the evidence,--by the greater weight of the testimony. In a civil suit that is always the rule,--the preponderance of the evidence; the greater weight of the testimony. And if a party who assumes the burden of proof simply leaves the matter in doubt, so that you can't tell on which side the scales go, the scales being even, his case fails. He does not prevail on the civil side of the court until his side of the scale is heavier. When the scales are even, then the attempt to prove has failed, because he who attempts to prove on the civil side of the court must prove by the greater weight of the testimony.

"I cannot help you much, gentlemen, in considering the facts in this case. They are very few. You are to ask yourselves: Was this foreclosure suit, which was instituted in 1892, made under an agreement made in 1887? And was that agreement that there was to be attorney's fees paid by Fitzpatrick? Was there such an agreement? If so, you may ask: Was anything said by Fitzpatrick in 1892 about that agreement made in 1887? Did he remind Jones, or Jones & Williams, of that agreement of 1887? If he did not, was that because there was no such agreement, or was it simply because he forgot? Or, you may ask: Is it possible that he may have imagined or believed there was such an agreement, while there was none? If there was no such agreement, did Fitzpatrick bring the mortgage to Jones & Williams to be foreclosed, and did he say nothing to them about a fee? Did he ask nothing about what the fee would be for the foreclosure? And, if he did not, does that intimate to you that he was acting under some former agreement, or what he believed was an agreement? Or did he put the mortgage in the hands of those lawyers when he foreclosed without saying anything about what they would charge? I can see how it would be somewhat difficult for you to come to a conclusion. You have to look at the case from all possible points of view, after passing upon the credibility of witnesses, and your test will be, not only as to credibility, but as to common sense and observation in the ordinary, commonplace affairs of life. If you come to the conclusion that in 1887 there was no such agreement made (there was no allegation and no testimony that I remember, that there was an agreement made in 1892)--if you come to the conclusion that Mr. Fitzpatrick and Mr. Jones didn't make the agreement which Mr. Fitzpatrick says that he believes was made, then you will consider the testimony as to the value of the services, and on that point you are to consider the testimony of the witnesses who were sworn before you as to what would reasonably be the value of the services rendered in the foreclosure. I charge you that you cannot give more than $150. That is the amount asked for. I believe you ask for interest, Mr. Allison?"

Mr. Allison: "I think we are not entitled to interest."

"I will state to you, Mr. Foreman, if you come to the conclusion to give Jones & Williams a verdict, you cannot allow interest at all. This is not a liquidated demand. It is something still to be fixed. You cannot, therefore, give more than $150. You remember some testimony that $175 would have been a reasonable fee. The plaintiffs have asked for no more than $150. They cannot get more than $150, and you may give that or any sum which you think, under the testimony, would have been a reasonable fee for the services.

"I have been requested by counsel for plaintiffs to charge you the following propositions of law:

"(1) That this is a suit by Jones & Williams, as plaintiffs, against John H. Fitzpatrick, as guardian, and that the defendant, who relies upon an express agreement as to the amount of counsel fees, must show by the preponderance of the evidence that there was such an agreement with the plaintiffs, Jones & Williams. I so charge you. That is the law.

"I am also requested to charge you that, if you find that there was an agreement between Ira B. Jones and John H. Fitzpatrick in 1887 as to the price to be charged for the foreclosure of the Massey mortgage, such contract could not bind the firm of Jones & Williams in 1892, unless you find that J. H. Fitzpatrick called the attention of Mr. Williams to the contract he had had with Jones in 1887, and that Mr. Williams acquiesced in the contract made with Jones in 1887. I cannot charge you that. I think I have charged you all the law applicable to this case, which, in general, is just this, Mr. Foreman: Mr. Fitzpatrick is entitled to a verdict in this case if he has satisfied you, by the preponderance of the evidence, that a contract was made between him and Mr. Jones in 1887 as to all dealings in connection with his ward. If he has satisfied you, by the preponderance of the evidence, that such a contract was made, he is entitled to a verdict. If, on the contrary, he, assuming the burden of proof, has not satisfied you, by the greater weight of the testimony, that such a contract was made, then he is not entitled to a verdict, and you will be bound to consider, then, the testimony as to the services of the plaintiffs, Jones & Williams, because there is no denial that they did the work, and if they did the work in the ordinary course of business as lawyers, under no such contract as Mr. Fitzpatrick claims, then they are entitled to pay for their services, and you will judge, from the testimony, what the services were worth. You understand, Mr. Foreman, there can be no contract unless the minds of the parties meet. One man may think there is a contract, and the other never think so,--never agree. If such is the case, there is no contract."

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